John Rizzo: We Should Have Been Prouder of Our Cover-Up

John Rizzo’s second regret is that after the CIA destroyed torture tapes in 2005, they should have briefed Congress and the Courts on their attempt to cover-up their own torture.

Mind you, that’s not exactly what he says. Here’s his version:

We should have made damn sure that the intelligence committees’ leadership—if not the full committees—were told about the destruction as soon as it happened. To take whatever lumps we deserved (and we clearly deserved some) then and there. We should have done the same thing with judges presiding over then-pending court cases potentially implicating the tapes, even if we weren’t obligated to do so as a technical legal matter. In short, we should have told everyone in all three branches in the Government who had even an arguable need to know.

To some degree this looks like a statement designed for John Durham’s benefit: a performance of real regret for doing something bone-headed (though why bother now that Durham has already let the statute of limitations expire on the case?). Though Rizzo probably overstates the outcome of Durham’s investigation here, as there is a difference between “no evidence of a cover-up” and “insufficient evidence to charge when your President is demanding you look forward.”

Ultimately, the various investigations would find no evidence of a cover-up, but rather that the whole thing was one monumental screw-up.

I’m particularly amused, however, by this statement.

In 2002, CIA videotaped the interrogation of the first captured Al Qaeda terrorist to be water-boarded. It was lawfully conducted, but the tapes were graphic and hard to watch. Almost immediately, those in CIA who made the tapes wanted to destroy them, fearing the faces of the interrogators on the tapes would put them in danger if and when they were ever made public.

We know the “hard to watch” and “fearing the faces of the interrogators” lines at most describe one, the smallest one, problem with the tapes. There were at least two other problems with them. First, they proved the torturers had exceeded DOJ guidelines.

As CIA’s Inspector General made clear, the waterboarding that was depicted on the tapes in 2003 did not fall within the limits of the Bybee Two memo, both because the torturers used far more water, forced it down Abu Zubaydah’s throat, and used it with far more repetition than allowed by the memo. Furthermore, the torturers exceeded even the guidelines the Counterterrorism Center set on sleep deprivation–though Yoo may (or may not have) have set the limit in the Bybee Two memo high enough to cover what had already been done to Abu Zubaydah. Folks in the IG’s office had about seven more pages of concerns about what was depicted on the torture tapes (PDF 86-93)–but that all remains redacted. So the tapes did not, in fact, match the written guidelines DOJ gave them.

In addition, the tapes show that the torturers had already altered the tapes to hide something on them.

The other, potentially bigger problem for those depicted in the torture tapes has to do with what once appeared on the 15 tapes that the torturers altered before November 30, 2002, when CIA lawyer John McPherson reviewed them. Before that point, the torturers had altered 21 hours of the torture tapes, which covered at least two of the harshest torture sessions. Had someone done forensics on the tapes before they were destroyed, we might have learned what happened during those 21 hours. But by destroying the tapes completely, the CIA prevented that from happening.

One potential problem would be if the interrogators used a coffin–as they had planned to–after John Yoo judged that mock burials would be illegal. Or maybe they just broke the law in other ways.

But given that Rizzo’s explanation for why the tapes were destroyed is so obviously a fiction, I’m guessing he knows well that the interrogation of Abu Zubaydah was not “lawfully conducted.”

I’m most interested, though, in this BS from Rizzo:

While we had informed the intelligence committee leadership in early 2003 of the tapes’ existence, we did not tell them on a timely basis about their unauthorized destruction. It was not our intent to hide that fact; it was simply a communications breakdown inside CIA in which then-Director Porter Goss neglected to inform the leadership as we agreed he would do the day he and I learned about the destruction. To this day I am convinced it was an unintentional oversight on his part, and I blame myself for not following up to make sure he had informed the Hill. The whole thing had just fallen through the cracks, something I saw happen far too often in my long Agency career.

Oh, my. Poor Porter Goss forgot to tell Congress that Jose Rodriguez had covered up illegal torture.

Or did he?

How is it that Crazy Pete Hoekstra got his very own briefing on torture on the very day the torture tapes were destroyed?

What went on at Crazy Pete’s briefing–a briefing for Crazy Pete alone, without his counterpart Jane Harman, who had long expressed opposition to destroying the torture tapes, or his own staff–on the very day CIA destroyed the torture tapes?

That’s right. As I have noted in the past, Crazy Pete Hoekstra (and Duncan Hunter, in a separate briefing) got a “complete brief” on the torture program on November 8, 2005, the day the torture tapes were destroyed.

An MFR lacking real detail (see PDF 32) at least reveals that Office of Congressional Affairs head Joe Wippl and C/CTC/LGL (who I believe would still be Jonathan Fredman) gave the briefing. A number of chronologies on Member Briefings included in this FOIA set note that no staffers attended these two briefings (see, for example, page 100 of this PDF), and those appear to be the only briefings for which CIA noted that no staffers attended. And note, minimal as the MFR on this is, it is one of just five or six briefings in the years before the torture tapes were destroyed for which CIA actually did do an MFR (one of the others is the briefing at which Pat Roberts okayed the destruction of the torture tapes).

In other words, this was one of the few torture briefings CIA’s Office of Congressional Affairs saw fit to memorialize. They don’t say what was briefed, really, but they’ve got proof that two men from the CIA briefed Crazy Pete and just Crazy Pete on something related to the torture program the day CIA destroyed the torture tapes.

It’s not definitive they were talking about the torture tapes, mind you; after all, the torture apologists were in full court press trying to prevent McCain’s Detainee Treatment Act from taking away all the torture toys.

But one more thing suggests there may be a connection. On the evening of the same day Crazy Pete got this briefing, the same day CIA destroyed the torture tapes, someone sent an email with a list of all Congressional briefings related to the torture program (see page 90-92 of the second PDF). It says only, “Per your request please find attached List of Members who have been briefed and a couple of other categories.” The list is interesting for two reasons. First, because the email forwarded a list with some key errors, in that it listed Harman, not Pelosi, as having been briefed at the first torture briefing in September 2002 (with a handwritten note, “error, it is Pelosi per 145166″). It also includes an error that remained in the CIA’s own records until last year, showing Goss, not Crazy Pete, as the Chair in a meeting in March 2005 (it’s unclear the meeting with Harman happened; what appears to have happened instead is an extra briefing with Dick Cheney for Pat Roberts and Jay Rockefeller).

More interestingly, the Crazy Pete and Hunter briefings–which had taken place that very day–were already in the Excel spreadsheet showing all the briefings. It’s as if they briefed Crazy Pete and Hunter just so they could print this out as part of a CYA attempt to say that Congress had approved the torture tape destruction. And maybe Crazy Pete and Hunter did just that.

Goss’ so-called oversight seems a lot more suspicious given that one of Dick Cheney’s lackies, Joe Wippl, and one of the people involved in the tape cover-up from CTC was off briefing Hoekstra that same day.

Now, we’ll never know, because as with most key briefings, the CIA didn’t make a record of what went on the briefing (and why would you, if you had gone to the trouble of excluding even Hoekstra’s aides?).

But as with Rizzo’s first regret, this seems to be more about rehashing the fictions that got him out of legal trouble than any actual regret.

28 replies
  1. NMvoiceofreason says:

    “To some degree this looks like a statement designed for John Durham’s benefit: a performance of real regret for doing something bone-headed (though why bother now that Durham has already let the statute of limitations expire on the case?).”

    Factually incorrect. While true for the destruction of evidence, it is untrue for 18 USC 2340A(c) conspiracy charges.

  2. Jim White says:

    This “unintentional oversight” by Goss was just as unintentional Rose Mary Woods’ little “oopsie” on the Watergate tapes.

  3. rugger9 says:

    But, as EW astutely observed, the timing is coincidental. Knowing as we do that the Bushies did everything they did for a purpose, I agree with EW that this looked very much like a CYA meeting, and I would argue that the tapes were already destroyed, maybe some time before, but this was the earliest they could get the two dullest knives in the intel drawer to meet the CIA. Do we know exactly how long the meetings ran, and do we have independent timelines on the destruction of the tapes?

    As far as the conclusions regarding the contents, I agree with EW. If the depictions were indeed [as considered by the lawyers] legal, then there is no need to destroy the tapes, they’d just roll the dice screaming 911, 911, 911. Rudy would do that all day for free.

    Another thought about timing, after the obligatory visit to the barf bag upon reading Shrub’s claim that his intel helped get OBL, why is it that the 10th anniversary is bringing out all of these revisions to history? If it were tied to 9/11/01, as many of the books are, it would make sense, but torture tape destruction years after the fact? Why remind everyone about it when it was so illegal on so many levels, leaving open NM’s conspiracy possibility.

  4. emptywheel says:

    @rugger9: It’s all about solidifying a narrative. Some of these mea culpas are truly that. But Rizzo’s is an old spook trick, an apparent mea culpa that is instead another attempt to exonerate himself and the CIA.

  5. pdaly says:

    Somewhat OT re: hiding the bodies:

    Here are two new “soylent green” methods of cremation:
    resomation” (alkaline solution to dissolve bodies) and “promession” (freeze drying and pulverizing the body) are developed in Europe.

    Resomation has been given the legal go-ahead in Florida for a funeral parlor.

    Money quote for resomation:
    After 2.5 to 3 hours “[b]ody tissue is dissolved and the liquid poured into the municipal water system. Mr Sullivan, a biochemist by training, says tests have proven the effluent is sterile and contains no DNA, and poses no environmental risk.”

    Why do I have a sneaking suspicion that funeral homes will not be the only group to purchase a resomator machine?

    I suppose the bones (and artificial hips, etc) will need to be dealt with in a traditional manner– to leave no trace of the body.

  6. BoxTurtle says:

    Fictions to get him out of legal trouble?!? Gonzo fixed that and Schultz carefully permitted the SoL to lapse.

    He could have tortured someone personally on live TV and Schultz still wouldn’t have done anything.

    Boxturtle (“I see NUTTTTING…NUTTING! – Sgt. Schultz)

  7. rugger9 says:

    As you say, though, the claim that the tapes depicted legally blessed activity would necessarily mean no exposure to legal attack. No need to destroy if it was legal. Faces can be pixellated.

    It’s clear that the activities weren’t legal per Yoo and/or Bybee, and given how the CIA fudged the rest of the timeline as much as they could, I wouldn’t be surprised to see them telling Crazy Pete that they had to destroy some stuff for national security reasons and not being clear exactly when.

  8. rugger9 says:

    SoL for some things, maybe, but torture tapes would be of interest to the Hague, and I’m sure the ICC doesn’t have a SoL on anything related to the General Convention on Torture.

  9. BoxTurtle says:

    @rugger9: Neither the ICC nor the Hague will have the slightest interest in pursuing this. Or we’d have had arrest warrants by now. There’s enough information in the public domain to indict at least Yoo, Hayes, Cheney, Rummy, and Addington.

    Rumor is that there’s an arrest warrant waiting for Rummy in Europe, but it’s supposedly an NGO doing it. They’ll file if he ever goes someplace that would extradite.

    Boxturtle (Remember, ObamaLLP holds a lot of the purse strings)

  10. pdaly says:

    Speaking of solidifying the narrative, this BBC news clip of Cheney (undated but released today for the 10th anniversary of 9/11) has Cheney (with AEI logo behind him) recounting his sudden move from his office to the bunker on 9/11 because “Crown” (the WH) was potentially targeted by a Dulles airport plane that eventually crashed into the Pentagon.

    I recall that the timing of this event was at odds with Richard Clark’s recollections.

    News to me, Cheney states he stopped “part way to the PEOC” to make a call to Bush via a (house?) phone.
    (see video clip at 1:24)

    Does this help mend the fiction that Cheney received Presidential permission for the shoot down orders of the plane in PA? (Cheney doesn’t mention the shoot down orders in this video clip)

  11. rugger9 says:

    Maybe not anytime soon, but Augusto and Ratko may not agree with you. Eventually the politics gets pushed out of the way.

    Rizzo may be too low-level for the Hague to prosecute, but might be useful as a material witness.

  12. Mary says:

    It is hard to watch – a crazy guy who had no operational control being tortured into inventing things that weren’t true to make the torture stop.

    @9 – and the overlooked part of Yoo/Bybee is that the memo says that intent is an all facts and circumstances jury determination. The memos pretend to do a lot that they can’t, but they do grudgingly say that a jury is not likely to buy the argument that when a helpless person is assaulted, drowned, beaten, etc. – i.e., subjected to one or more of the enhanced interrogation techniques – the juror’s are much more likely to conclude that the torturers “intended” the natural consequences of their act (torture) than to believe that they merely were intention-free torturers, engaged merely in interrogation.

    Since Chertoff had not signed off, on behalf of the crim div, this was basically forced into the memo. And it gives a separate grounds for destroying the tapes. Because the Bybee memo itself pretty much spells out that, no matter what we put in this memo, whether you are looking at torture or not is going to be an intent question based on the severity of the acts we are authorizing – and a jury decides that fact question. If they decide it looks like torture – you lose. (That’s the memo speaking – not just me). So it pretty much was a directive to the torturers not to leave anything around for a jury to look at.


  13. Mary says:

    BTW – is Rizzo speaking for a “cat got his tongue” Scott Muller when he says “we?”

    And I guess we aren’t going to be getting his take on how proud the CIA should be of their authorizations to shoot down a missionary’s plane and kill the infant on board.

    It’s not like we went into the torture programs without a very recent example of how well the CIA processes facts and “legal” authorizations.

  14. rugger9 says:

    So then the question becomes why videotape at all?

    Audio would work as well, and no one could see what was being done.

  15. Bob Schacht says:

    Before reading comments: Your chronology suggests to me that after being briefed, Crazy Pete told his briefer, “You better destroy those tapes immediately if not sooner, because if these tapes ever become public, you’re toast.”
    IOW, I’ll bet that Crazy Pete was not just a passive recipient of information.

    Now to read the comments.

    Bob in AZ

  16. Bob Schacht says:

    @pdaly: Ah, technology advances!

    Back in my grad school days, the job of resomation for some of our lab specimens (not human) was given to a species of beetle, which was very smelly, but did the job in about a week.

    Bob in AZ

  17. Bob Schacht says:

    @rugger9: Because this kind of sociopath always thinks their actions are justifiable, and want to prove it, but then the rational minds come around and point out that if these videos ever got into court, they were done for?

    Bob in AZ

  18. pdaly says:

    @Bob Schacht:

    I imagine emptywheel’s post and Mary’s comment triggered a prolonged hiss from Rizzo.

    OT: How big did those beetles get, munching on nutrients all the time?

  19. rugger9 says:

    @Bob Schacht:
    Also, the thing that doomed Nixon was his tapes, that I believe was going to be used for a book or something post-Presidency.

    Sociopath, check. And I thing your comment on Crazy Pete is correct, even he had to see the minefields there, how did all of those excellent legal minds at CIA miss it? Don’t they have lawyers? It’s not like they haven’t ignored WH directives and opinions before.

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